October 17, 2004
OK Blakely insights
Though this great conference in Oklahoma City covered a lot of important non-Blakely ground, my own sentencing thoughts still are always Blakely-ized these days (as this prior post about the conference reveals). Of course, feeding my Blakely addiction is the fact that I learn more about the post-Blakely world every time I hear from folks living in that world.
At Oklahoma City, Professor Barry Johnson moderated a terrific panel which included US Tenth Circuit Judge Stephanie Seymour, WD Okla Federal Public Defender Susan Otto, and WD Okla US Attorney Robert McCampbell. All three shared important and insightful observations about what Blakely has meant and could mean in the federal system: Judge Seymour detailed how many Blakely appeals the Tenth Circuit has faced and her court's administrative efforts to deal with the Blakely blast; FPD Otto detailed the human realities of defendants and expressed hope that such realities could return to federal sentencing decision-making in a reformed post-Blakely system; USA McCampbell highlighted many of the uncertainties and challenges that Blakely has created due to the complicated nature of federal guideline sentencing and the large number of federal sentencing cases nationwide.
The comments of USA McCampbell, who since May has been serving as Chairman of Attorney General Ashcroft's Subcommittee on Sentencing, were especially encouraging. (Of course, he was not speaking on behalf of DOJ, but even his "unofficial" comments may provide some sense of how DOJ is thinking through the post-Blakely world.) Though McCampbell expressed hope that the government will prevail in Booker and Fanfan to keep Blakely from applying to the federal system, he also effectively canvassed many of the academic suggestions about how to restructure federal sentencing after Blakely. Because DOJ will surely have a big role — indeed, probably too big a role — in revising the federal system after Booker and Fanfan, it was heartening to hear that McCampbell had read and given serious thought to the many academic ideas that have been set out on this blog and elsewhere.
In addition, McCampbell in his written materials for the conference thoughtfully stated that "the debate on sentencing policy which has been catalyzed by the events of 2004 is healthy," and he also stressed the value of "transparency" in sentencing. I could not agree more with both sentiments, and the emphasis on transparency is especially astute. (I often think of this blog as an exercise in sentencing transparency, and my interest in transparency accounts for my eagerness for sentencing data as expressed here and here and so many other places on the blog.) Here's hoping that DOJ officially believes that transparency is a key value that should apply to its own decisions and advocacy, and also that DOJ urges the US Sentencing Commission and Congress to emphasize transparency in any and all post-Blakely reform efforts.